Category Archives: Courts

“Discrimination”

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The Supreme Court on Monday said a Muslim woman who applied to work at Abercrombie & Fitch Co can raise discrimination claims without proving the company intentionally avoided hiring her because she wore a head scarf for religious reasons.

So, I can cry discrimination on no better complaint than that I have one? I don’t even have to show that there’s a foundation for one?

Justice Clarence Thomas, in dissent, thought there ought to be a reason.

I agree with the Court that there are two—and only two—causes of action under Title VII of the Civil Rights Act of 1964 as understood by our precedents: a disparate-treatment (or intentional-discrimination) claim and a disparate-impact claim. Our agreement ends there.   Unlike the majority, I adhere to what I had thought before today was an undisputed proposition: Mere application of a neutral policy cannot constitute “intentional discrimination.” Because the Equal Employment Opportunity Commission (EEOC) can prevail here only if Abercrombie engaged in intentional discrimination, and because Abercrombie’s application of its neutral Look Policy does not meet that description, I would affirm the judgment of the Tenth Circuit.

The majority should have listened better to Thomas.

The Supreme Court’s ruling can be seen here.

The 5th Circuit and “Immigration”

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Recall President Barack Obama’s DAPA program—Deferred Action for Parents of Americans and Lawful Permanent Residents—which he created by Executive…action…and which allows illegal aliens to register for work, get that work, obtain driver’s licenses, and otherwise avoid the consequences of their illegal entry into the US. Last February a Federal District Judge issued an injunction blocking implementation of DAPA and the creation of government bodies whose purpose would have been that implementation. The injunction was to last until the underlying suit, brought by 26 States, was itself adjudicated.

The 5th Circuit upheld that injunction, ruling in part,

The states have shown that “issuance of the stay will substantially injure” them. A stay would enable DAPA beneficiaries to apply for driver’s licenses and other benefits, and it would be difficult for the states to retract those benefits or recoup their costs even if they won on the merits. That is particularly true in light of the district court’s findings regarding the large number of potential beneficiaries, including at least 500,000 in Texas alone.

But that was the purpose of Obama’s action: to bring these folks in, with actual amnesty (not even the light punishment that too many on the right bleat about being amnesty), permanently.

And

The government identifies several important interests: it claims a stay would improve public safety and national security, provide humanitarian relief to the family members of citizens and lawful permanent residents, and increase tax revenue for state and local governments. To the contrary, however, and only by way of example, on March 16, 2015, the Attorney General, in opposing a motion to stay removal in an unrelated action, argued to this very panel that “granting a stay of removal…would impede the government’s interest in expeditiously…controlling immigration into the United States.” Presumably, by referring to “the government’s interest,” the United States is referring to “the public interest.”

Presumably, no sarcasm was intended by that last….

Never mind that DoJ has been caught—again—talking out of both sides of its collective mouth.

On the matter of Obama’s infamous “prosecutorial discretion,” the court offered this:

DAPA’s version of deferred action, however, is more than nonenforcement: it is the affirmative act of conferring “lawful presence” on a class of unlawfully present aliens. … “[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.'” Declining to prosecute does not convert an act deemed unlawful by Congress into a lawful one and confer eligibility for benefits based on that new classification.

The court’s ruling can be seen here.

Another Judge Gets It Right on Guns

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People in the nation’s capital no longer have to show a good reason to get a permit to carry concealed handguns outside their homes and businesses.

The District of Columbia’s police chief said Tuesday that she’s dropping this requirement, a centerpiece of the city’s handgun-control legislation, after a federal judge issued a preliminary injunction against it.

That’s entirely appropriate since government does not get to dictate the reasons for a man owning a gun.

The city’s law, one of the nation’s toughest, says a person must show a “good reason to fear injury to his or her person or property” or another “proper reason for carrying a pistol” to get a concealed-carry permit.

Balance that against the 2nd Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Try as I might, I can’t find anything in that Amendment, neither clause nor syllable, that says “agreeable with reasons approved by the government.”

Specialized Judges, But for Whom Do They Work?

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Joel Shapiro faced an uphill battle when he fought the Securities and Exchange Commission in an Atlanta court last year.

The investment-firm chief executive came before an SEC administrative law judge who has never fully cleared a defendant. In August, the judge found Mr Shapiro had violated securities law, showing “reckless disregard” for his duty to investors.

Shapiro’s outcome isn’t unusual. Shockingly, neither is that SEC admin judge’s record. Appeal? Don’t bet against the house [emphasis added].

The odds are once more against Mr Shapiro as he challenges this ruling. His appeal will be decided by the SEC’s five commissioners, the same body that decided the case against him should go forward in the first place.

Indeed,

The SEC won against 90% of defendants before its own judges in contested cases from October 2010 through March of this year, according to the Journal analysis. That was markedly higher than the 69% success the agency obtained against defendants in federal court over the same period, based on SEC data.

There’s nothing wrong with using judges specialized in an aspect of the law: we get faster results that more closely align with the law and with justice. That’s what bankruptcy judges do, for instance.

Specialized judges though, regardless of their specialty, need to be Article III judges—judges who are part of that third branch of our Federal government, like bankruptcy judges—not Article II judges. An Article II judge—that SEC judge, for instance—is created by the Executive Branch, and he works for the agency bringing the complaint.

No, the critical item here is the judge’s employer. With the SEC, for instance, it’s an Executive Branch judge, an SEC judge, adjudicating a case brought by a part of the Executive Branch, the SEC. That’s like the cop bringing his own judge to traffic court. Or a Federal prosecutor bringing his own judge to criminal court.

Maybe Shapiro has a case, and maybe he’s guilty as sin. It’s impossible to say in an SEC court. Can you say, “Conflict of interest,” boys and girls?

A Proper Ruling

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And by Article III judges….

The Second Circuit appellate court has ruled in favor of individual liberty, privacy, and free speech all in one ruling.

[The Second Circuit] ruled Thursday the National Security Agency’s controversial collection of millions of Americans’ phone records isn’t authorized by the Patriot Act, as the Bush and Obama administrations have long maintained.

The Court held, in part,

…we hold that the text of [the law in question] cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program. We do so comfortably in the full understanding that if Congress chooses to authorize such a far‐reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously. Until such time as it does so, however, we decline to deviate from widely accepted interpretations of well‐established legal standards.

Indeed. The question is a political one and not a judicial one. It may be that Congress will screw this up and authorize the thing, but in that event we have recourse: we can fire the blackguards in an upcoming election and select, instead, representatives who understand our rights as free men.

The court’s ruling was based on one of the core questions regarding this law:

[T]he government takes the position that the metadata collected—a vast amount of which does not contain directly “relevant” information, as the government concedes—are nevertheless “relevant” because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. We agree with appellants that such an expansive concept of “relevance” is unprecedented and unwarranted.

Sorry guys—no fishing expeditions, either.

The Second Circuit’s ruling can be read here.